Mrs Sandra Webber Consumer Support Director UK Civil Aviation Authority CAA House, 45-49 Kingsway, London WC2B

6TE United Kingdom 04 October 2012 ref: airpax Dear Mrs Webber ERA FEEDBACK TO THE UK CIVIL AVIATION AUTHORITYS REVIEW OF THE NOTION OF EXTRAORDINARY CIRCUMSTANCES The European Regions Airline Association (ERA) has recently received your letter, dated 14 September 2012, where you provided a comprehensive progress update on the UK Civil Aviation Authoritys (CAA) initiative aimed at clarifying the notion of extraordinary circumstances as applicable to Regulation EC 261/2004. About ERA Founded in 1980, the European Regions Airline Association is a non-profit trade association representing some 60 intra-European airlines which annually carry 70.6m passengers on 1.6m flights to 426 destinations in 61 European countries. ERA also represents and supports more than 100 Associate and Affiliate members including airframe and engine manufacturers, airports, suppliers and service providers. Introduction The European Commission (EC) has recently confirmed its intention to issue, by December 2012, a legislative proposal amending Regulation EC 261/2004 on Air Passenger Rights. During the various phases of the consultation process, the ERA Directorate has been very proactive in providing the European legislators with its input and suggestions to reach a fair balance between an adequate protection for passengers and a proportionate burden on airlines, avoiding overregulation and excessive costs and bearing in mind that safety must remain the overriding priority of airlines and should therefore never be compromised. ERA preliminary remarks The ERA Directorate would like to address some key principles that should be considered in any revision to existing legislation on air passenger rights and, more specifically, in any clarification to the notion of extraordinary circumstances: a) The European legislator should not create expectations and requirements that can only be fulfilled by air carriers operating large aircraft to and from major hub airports. The reality of the European air transport is much more complex and cannot disregard the crucial role played by regional carriers operating smaller aircraft throughout peripheral, insular and dispersed regions

The Baker Suite, Fairoaks Airport, Chobham, WOKING, Surrey, GU24 8HX, UK Telephone: +44 (0)1276 856495 Fax: +44 (0)1276 857038 E-mail info@eraa.org, Web site www.eraa.org

where the availability of maintenance infrastructure, reserve staff and spare parts is often very limited or non-existent. b) Aviation remains a critical safety business. It is essential that any rights granted to passengers by way of financial compensation do not undermine this principle. An airline - and more specifically the commander - should always retain his/her discretion and his/her right to decide not to operate a flight for safety reasons based on experience and training. Notwithstanding any of the obligations in the upcoming revision to Regulation EC 261/2004, the primary right of every passenger is to travel safely and securely to their chosen destination. Consequently, no legislative proposal should penalise or add commercial pressure on airlines where a decision not to operate a flight as planned is guided by safety or security concerns. c) Any attempt to clarify the notion of extraordinary circumstances should not add disproportionate administrative burdens and costs to airlines. When an event is clearly beyond an airlines control and extraordinary, the trust in commanders discretion should prevail and supersede any unnecessary and burdensome requests on airlines to collect, process and submit additional documents to justify the decision not to operate the flight in case of adverse weather conditions or ATC/Aerodrome decisions. The reality of civil aviation in Europe is quite heterogeneous and any additional red tape costs for a small regional operator could simply be financially unsustainable. d) Over-prescriptive requirements imposed on airlines to prove that their decision not to operate a flight was due to extraordinary circumstances seems inconsistent with the reality of the aviation market where passengers and air carriers share the very same objective to fulfil their transport contract and to safely reach the airport of destination. From a financial, business and operational standpoint, airlines have no interest in cancelling a scheduled flight, therefore there is no rational justification to impose over-prescriptive requirements to justify the decision not to operate a flight in case of extraordinary circumstances. Conclusion Bearing in mind the key principles mentioned above, I am pleased to enclose the ERA Directorates initial comments (see Annex 1) to your letter dated 14 September 2012. Although supportive of the UK CAAs initiative to gather the aviation stakeholders views and feedback on its preliminary attempt to clarify the notion of extraordinary circumstances, the relatively short notice received and the strict deadline set (5th October) means that these views are those of the ERA Directorate and we are still consulting with members to form a final opinion. As such, I believe it would be very useful for me to meet you personally to further discuss this crucial topic and share the main position of the ERA members. Could I please ask you to agree a meeting in the next weeks and suggest some convenient dates? Yours sincerely

Mike Ambrose Director General

Annex 1 Preliminary remarks from ERA Directorate on the UK Civil Aviation Authoritys letter dated 14 September 2012 on the definition of extraordinary circumstances Annex A: Technical Faults The Wallentin-Herman v Alitalia judgment noted two examples of the type of technical fault that could be considered to be an extraordinary circumstance. We consider that there are a number of other technical issues that could be considered to be of a similar magnitude. We have set out below details of our emerging thinking on this and how we plan to take this work forward. Category 1 - Incidents that we consider ARE extraordinary We have compiled the following list of technical problems that we consider should be viewed as an extraordinary circumstance for the flight concerned obviously this is non exhaustive and should be constantly reviewed: hidden manufacturing defect that impinges on flight safety; faults discovered just before flight or, during the flight concerned or on the immediately preceding flight (this will be subject to when the defect came to light, for example, if routine maintenance led to the defect rectification and the inspection/checks were not adequate then this would not be considered extraordinary) damage to the aircraft caused by: o Acts or potential acts of sabotage or terrorism; o Birdstrike; o Ground incurred damage (ie baggage truck, airbridges); Lightning strike Pepperpot event (eg large hailstones) Severe turbulence o Heavy landing; o Foreign object damage. o catastrophic engine failure engine surge; de-pressurisation electronic hardware / software conflicts which indicate that the aircraft is not fit to fly and which cannot easily be cleared (by rebooting the electronics) Non-Technical Faults: Strikes and industrial action; Crew unfit to fly ; Failure of elements of the infrastructure upon which operations are dependant; Failure of service providers essential for operations; Improper handling of dangerous goods discovered just before or after flight; Weather or air traffic related cancelations or delays; Diversions due to weather, safety, medical or disruptive passengers; Reactionary delays and cancelations due to prior events that are considered as extraordinary.

Comment [A1]: The newly suggested wording seems more accurate as it includes cases where a flight can reach its destination safely, but cannot be operated for the successive flight. The airline may have limited maintenance facility at small or regional airports and a very short turnaround time schedule. Comment [A2]: Eg actions required on receipt of a credible bomb threat

Comment [A3]: A new bullet (Weather or air traffic related cancelations or delays) includes all cases of lightning strike, pepperpot event and severe turbulence and has been added to the list of non-technical faults

Comment [A4]: These events are already covered in the second bullet and should be deleted. Comment [A5]: This event could represent a serious issue, especially for airlines whose availability of standby/reserve staff is limited.

Category 2 - Incidents that we consider are NOT extraordinary We also considered the types of incidents that, in our view, should not be considered to be extraordinary and these are set out below: anything, e.g. defect rectification, that

comes to light as a result of planned maintenance; failure of equipment that suffers heavy wear and tear tyres, brakes, etc (an airline operating from an unsupported station could be reasonably expected to carry such consumables in the hold of the aircraft or be able to source them locally, from other airlines if necessary, e.g. pool spares agreements); failure of equipment that is in the wear-out failure part of the bath tub curve
Where the operator has not followed the manufacturers approved maintenance schedule and/or agreed international safety regulations; Where the operator has failed to adequately contract for services that it could have reasonably expected to be essential for the operation; Where the operator has not adhered to operating procedures approved by its authority. Weather and ATC We are also developing a process for reviewing cancellations/delays due to weather and ATC restrictions. We have set out at Annex B the type of information that we think airlines need to provide to prove extraordinary circumstances. We will provide further updates when we have been able to test a range of complaints that fall into these categor

Comment [A6]: This requirement is simply impossible to meet and would just prevent smaller aircraft from operating. Moreover, overloading a small aircraft with heavy consumables would have negative impacts on the environment due to the higher fuel burn consumption. Comment [A7]: This point does not clarify the notion of extraordinary circumstances. It is not clear where the line is drawn in the bath tub curve and who sets the threshold. The maintenance staff should simply follow the manufacturers instructions and recommendations

Comment [A8]: Any attempt to clarify the notion of extraordinary circumstances should not add disproportionate administrative burdens and costs to airlines. When an event is clearly beyond an airlines control and extraordinary, the trust in captains discretion should prevail and supersede any unnecessary and burdensome request on airlines to collect, process and submit dozens of documents to justify the decision not to operate the flight in case of adverse weather conditions or ATC/Aerodrome decisions. As already mentioned, the reality of civil aviation in Europe is quite heterogeneous and any additional red tape costs for a small regional operator could simply be financially unsustainable